Citation Nr: 0022473
Decision Date: 08/24/00 Archive Date: 08/25/00
DOCKET NO. 97-20 429A ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Waco, Texas
THE ISSUE
Whether new and material evidence has been submitted to
reopen a previously denied claim seeking service connection
for ankylosing spondylitis (rheumatoid arthritis) of the
spine.
REPRESENTATION
Appellant represented by: Disabled American Veterans
WITNESS AT HEARINGS ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
D. Dean
INTRODUCTION
The appellant had active air service from July 1954 to July
1974.
This matter comes to the Board of Veterans' Appeals (Board)
from rating determinations by the Waco Regional Office (RO)
of the Department of Veterans Affairs (VA).
The case was last at the Board in December 1998, when it was
remanded to the RO for further procedural development. In
the April 2000 supplemental statement of the case, the RO
determined that the previously denied claim seeking service
connection for ankylosing spondylitis should be reopened, but
that the reopened claim was not well grounded. Nevertheless,
the Board is obliged to make its own independent
determination of whether or not new and material evidence has
been submitted to reopen the claim. Barnett v. Brown,
83 F. 3d 1380 (Fed. Cir. 1996).
FINDINGS OF FACT
1. Entitlement to service connection for ankylosing
spondylitis of the entire spine was previously denied by the
Board in October 1995.
2. Evidence received since October 1995 is so significant
that it must be considered in order to fairly decide the
merits of the claim.
CONCLUSION OF LAW
New and material evidence has been submitted to reopen the
claim seeking service connection for ankylosing spondylitis
of the entire spine. 38 U.S.C.A. § 5108 (West 1991);
38 C.F.R. § 3.156(a) (1999).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
Entitlement to service connection for ankylosing spondylitis
involving the entire spine was previously denied by the Board
in October 1995. Once there has been an administratively
final denial of a claim, whether by the Board or by an RO, a
claimant must submit new and material evidence in order to
have VA reopen the claim and review the former disposition of
that claim. 38 U.S.C.A. § 5108. If the claim is reopened,
then VA shall next determine if the claim is well-grounded
pursuant to 38 U.S.C.A. § 5107(a); and, if so, shall next
evaluate the claim on the merits after ensuring that the duty
to assist under 38 U.S.C.A. § 5107(b) has been fulfilled.
See Elkins v. West, 12 Vet. App. 209 (1999) (en banc).
"New and material evidence" is defined at 38 C.F.R.
§ 3.156(a) (1999) as:
...evidence not previously submitted to
agency decisionmakers which bears
directly and substantially upon the
specific matter under consideration,
which is neither cumulative nor
redundant, and which by itself or in
connection with evidence previously
assembled is so significant that it must
be considered in order to fairly decide
the merits of the claim.
The preceding definition of new and material evidence has
recently received the explicit endorsement of the U.S. Court
of Appeals for the Federal Circuit. See Hodge v. West, 155
F.3d 1356 (Fed.Cir. 1998). In that decision, the Federal
Circuit Court commented that, under this standard, the new
evidence must merely "contribute to a more complete picture
of the circumstances surrounding the origin of the veteran's
injury or disability, even where it will not eventually
convince [VA] to alter its rating decision." Hodge, 155 F.3d
at 1363.
When the claim was previously before the Board in October
1995, the appellant had contended that x-ray films of his
back made in connection with his retirement from active
service would demonstrate the presence of ankylosing
spondylitis in service. The Board noted, however, that no
such x-ray studies were made at the time of the retirement
physical examination; that the appellant's spine was
evaluated as normal on this medical examination; and that the
appellant specifically denied having any problems with
arthritis, rheumatism, or recurrent back pain on this
examination.
However, the appellant's retirement physical examination was
conducted at Clark Air Force Base (AFB) in the Philippines in
September 1973. The new evidence submitted in support of the
claim to reopen makes it clear that the x-ray studies in
question were made at Wilford Hall Medical Center at Lackland
AFB, San Antonio, Texas, sometime in 1974 following the
appellant's return to the U.S. from the Philippines and
before his retirement at the end of July 1974. The
appellant's ex-wife further stated that he went from Laredo,
where he was stationed at the time, to San Antonio to have
the x-ray studies made, which showed calcification in his
neck.
This new information is so significant that it must be
considered in order to fairly decide the merits of the claim.
It therefore constitutes new and material evidence which is
sufficient to reopen the claim.
ORDER
The claim seeking service connection for ankylosing
spondylitis is reopened.
REMAND
The RO has denied the reopened claim as not well grounded
pursuant to 38 U.S.C.A. § 5107(a) (West 1991). However, this
could change if the missing x-ray reports of the appellant's
back could be located and if they demonstrate the presence of
ankylosing spondylitis.
The appellant has already written to Wilford Hall Medical
Center in search of these x-ray films, but he was told that
no such x-ray studies can be found at that location. It is
possible, however, that they may still be located at the
National Personnel Records Center (NPRC) in St. Louis.
Although other 1974 medical records originating at Wilford
Hall Medical Center were included in the service medical
records forwarded from the NPRC to the RO in 1992, no such
spinal x-ray studies or reports were included in that
material. A recent decision by the U.S. Court of Appeal for
the Federal Circuit indicates that a single request to the
NPRC for service medical records may not be sufficient in all
cases. Hayre v. West, 188 F. 3d 1327 (Fed. Circ. 1999).
Accordingly, in an effort to provide every administrative
consideration to the appellant in this case, the Board will
remand this appeal once more for the following further
action:
1. The RO should request that the NPRC
conduct a special search for either x-ray
studies of the appellant's back, or
(preferably) for the corresponding x-ray
reports, dating from sometime in 1974,
prior to July 31, and originating at
Wilford Hall Medical Center at Lackland
AFB, San Antonio, Texas. If found, these
missing service medical records should be
incorporated into the record.
2. If new service medical records are
discovered, the RO should readjudicate
the claim based on a review of all
relevant evidence to determine if the
reopened claim is well-grounded and, if
so, should next evaluate the claim on the
merits after ensuring that the duty to
assist under 38 U.S.C.A. § 5107(b) has
been fulfilled.
If the benefits sought are not granted, the appellant and his
representative should be furnished an appropriate
supplemental statement of the case and provided an
opportunity to respond. In accordance with proper appellate
procedures, the case should then be returned to the Board for
further appellate consideration.
The appellant need take no further action unless he is so
informed, but he may furnish additional evidence and/or
argument while the case is in remand status. Kutscherousky
v. West, 12 Vet. App. 369 (1999).
J. F. GOUGH
Member, Board of Veterans' Appeals
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